I. It all begins at the national level
The process to appoint a Judge of the Court of Justice of the European Union (‘CJEU’) starts at the national level when the selection of the candidates occurs. There are three CJEU Judges per Member State: one for the European Court of Justice (‘ECJ’), and two for the General Court (Article 19 Treaty of the European Union). Each Member State is responsible for choosing the candidates for the three judges it is entitled to. EU law is silent on how such a selection procedure is organised, thus it depends on the national law of each Member State. However, does it mean that Member States have absolute discretion on how they select the candidates? Or are Member States compelled to respect certain criteria or standards in selecting the candidates? These questions are the heart of the CJEU case C-119/23,Valančius.
II. Who can be appointed as a Judge of the CJEU, and how is it done?
EU law provides very loose criteria for candidates for the CJEU. According to Article 19(2) of the Treaty of the European Union and Article 253 of the Treaty on the Functioning of the European Union (‘TFEU’), ECJ Judges have to be ‘chosen from persons whose independence is beyond doubt and who possess the qualifications required for appointment to the highest judicial offices in their respective countries, or who are jurisconsults of recognised competence’. Similarly, Judges of the General Court have to be chosen among ‘persons whose independence is beyond doubt and who possess the ability required for appointment to high judicial office’ (Article 254 TFEU).
Concerning the appointment process of a Judge of the CJEU has, as AG Emiliou states in his Opinion in C-119/23, Valančius, three main phases. As mentioned in the previous section of this post, the procedure of appointment starts at the domestic level, with the selection of the candidate. The selection process of the candidates varies significantly from one Member State to another. In some Member States, there is specific legislation concerning the procedure to select the candidates. This is the case of Germany or Spain which, in 2020, introduced an act on the procedure to select candidates for a Judge of the CJEU as well as for the European Court of Human Rights. Conversely, in other Member States such as Luxembourg, this is rather an ad hoc procedure that is not established by law. In the Luxembourgish case, it is the government that launches the procedure through a ministerial decision, creating a committee to assess the candidates. However, there is nothing under Luxembourgish law that requires the appointment of such a committee.
Once the candidate is selected, they will be examined by a special committee at the EU level. The Article 255 Committee (in reference to the provision of the TFEU which established it) will assess the suitability of the candidate. While its opinion is not binding, a candidate who does not receive positive feedback is always withdrawn by the Member States that have proposed them. The Article 255 Committee takes into consideration several factors when assessing the suitability of the candidate to become a CJEU Judge, such as the candidate’s legal capabilities’ or ‘language skills’. Opinions of the Article 255 Committee are only communicated to the representatives of the Member State; they are not made publicly available. The reasons behind the non-publication of the opinion are, among others, the need to protect the candidates’ privacy as well as the decision-making process of the committee (See European Ombudsman’s Decision in case 1955/2017/THH). On the website of the Article 255 Committee, it is only possible to find reports that contain statistical information about the opinions issued and the criteria employed when assessing the candidates.
The last stage of the process is the stricto sensu act of appointment of the candidate as a Judge of the CJEU. This is done ‘by common accord of the governments of the Member State’ (Articles 253 and 254 of the TFEU).
III. Background of C-119/23, Valančius
In 2016, the Lithuanian government’s candidate for Judge of the General Court of the CJEU, Mr Virgilijus Valančius, was successfully appointed for that office for a three-year period. In 2019, when his term expired, he requested that his position be renewed. Instead, the Lithuanian government decided to make a call for candidates with a view to the appointment for the office of Judge of the General Court (para. 8). According to Lithuanian law, the candidates who respond to the call are evaluated by a special committee. Mr Valančius submitted his candidature. Upon reviewing all the candidates, the referred committee elaborated a list of the eight candidates who met the criteria to be appointed as Judges of the General Court based on their merits. Mr Valančius came top of the list. Disregarding the order of the list, the Lithuanian government proposed the candidate who came second. Since the Article 255 Committee issued an unfavourable opinion of this candidate, the Lithuanian government proposed instead the candidate who was third on the list. On September 2023, this candidate was effectively appointed as Judge of the General Court.
In the meanwhile, Mr Valančius contested the Lithuanian government’s decision to choose a different candidate than him before the Regional Administrative Court of Vilnius. In his view, selecting other candidates than him, who was the highest ranked of all candidates, would contravene the criteria of ‘independence is beyond doubt’ and ‘ability required for appointment to high judicial office’ that Judges of the General Court are required to meet based on Article 19(2) of the TEU and Article 254 of the TFEU. Facing this conundrum, the Lithuanian court decided to submit a preliminary reference to the CJEU asking whether the Lithuanian government’s choice of candidate to replace Mr Valančius was at odds with the standards set by Article 19(2) of the TEU and Article 254 of the TFEU.
IV. CJEU’s analysis of the case
The CJEU started its analysis by highlighting that judicial independence is a fundamental aspect of the EU legal order as part of the EU rule of law principle (Article 2 TEU) and a guarantee of the right to access an effective remedy (paras. 46–49). In this regard, the CJEU remarked that the ‘independence of a tribunal may be measured, inter alia, by the way in which its members are appointed’ (para. 50). This requires that the procedure to appoint judges is established in a way that does not ‘give rise to reasonable doubts, in the minds of individuals, as to the imperviousness of the judges appointed to external factors and their neutrality with respect to the interests before them’ (para. 51).
Upon this first general approach towards judicial independence and its relationship with the procedure of appointing Judges, the CJEU proceeded to examine the procedure to select Judges to the CJEU. While the CJEU acknowledged that Member States have discretion to establish the selection procedure of the candidates, they need to be mindful that Judges of the General Court have to be selected among persons whose ‘independence [is] beyond doubt’ and have the ‘ability required for appointment to high judicial office’ (para. 53). In this regard, the CJEU mentioned that ‘the involvement of independent advisory bodies’ in the selection procedure and ‘the existence, in national law of an obligation to state reasons’ can help to make the ‘appointment process more objective’ (para. 56).
The CJEU also referred to the two subsequent steps of the appointment process of Judges of the General Court as further guarantees to ensure that the candidates meet the conditions to be appointed as a CJEU Judge. Under Article 255, the committee examines the suitability ‘for the performance of the duties of a Judge of the General Court, in the light of the requirements set out in the third subparagraph of Article 19(2) TEU and the second paragraph of Article 254 TFEU’ (para. 58). Similarly, the representatives of the Member States also need to verify that the candidate was suitable for the office of Judge of the General Court.
The CJEU closed its reasoning by examining the case of Mr Valančius in light of its findings concerning the appointment process. For this, the CJEU relied on the analysis it made while Mr Valančius was the first on the list to elaborate, based on the merits of the candidates by the independent panel of experts, that all other candidates on that list met the prerequisites to be appointed as judges. Therefore, the Lithuanian government was not bound to choose the candidate with the strongest merits, but any of the candidates that met the criteria could be appointed as Judge to the General Court (para. 63). To this, the CJEU added that selected candidate received a positive review from the Article 255 Committee and, ultimately was appointed by the governments of the Member States (para. 65). Therefore, the Lithuanian government’s decision to opt for a candidate that did was not the one with strongest merits did not contravene the conditions established by EU law that Judges of the General Court need to meet.
V. A truly ‘EU law-free-area’?
A superficial lecture of judgment on C-119/23, Valančius might leave an impression that Member States have complete discretion to select the candidates for a Judge to the CJEU. As the AG stated at one point in his Opinion, this is an ‘EU-law-free-area’ (para. 59). However, a more careful analysis of the judgment reveals that when the selection process respects certain standards, it is more likely that the candidate selected meets the criterion of independence ‘beyond doubt’ as required by Article 254 of the TFEU. For instance, the existence of independent committees to evaluate the candidates or the obligations to explain why one candidate might not be suitable can help attain a more transparent and objective selection process (para. 56).
The CJEU acknowledged that Member States remain free to decide ‘whether or not to provide for a procedure for selecting and proposing a candidate for the office of Judge of the General Court’ (para. 55). At the same time, it states that it affirmed that detailed procedural rules governing the selection process can help to dissipate doubts concerning the independence of the candidate (para. 51). As it has already been mentioned, there are still Member States that lack a procedure established by law for selecting candidates for the office of CJEU Judge. If the Member States pay due attention to what the CJEU found on C-119/23, Valančius, they will be keen enough to examine whether the national selection process meets the referred standards and if not, adopt the necessary reforms. For instance, soon after the judgment was rendered, the German Federal Parliament (Bundestag) issued a note on the case.
C-119/23, Valančius might help some Member States to move towards a more objective and transparent procedure to select candidates. Still, a set of clearer guidelines is required, similar to those that the Council of Europe has elaborated concerning the ‘selection of candidates for the post of Judge at the European Court of Human Rights’. This might help not only to select candidates in an objective manner, it would also mitigate the existing disparities in the national selection procedures of candidates for the office of Judge the CJEU among Member States.
Overall, C-119/23, Valančius has served the CJEU as an exercise of self-reflection on its own judicial independence, subtly pointing to the fact that there is room for improvement when it comes to the selection process.
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